Cook v. Friley

1. Bill to Remove Clouds. Defendant’s claim. Its nature. Under Code 1880, $ 1833, the real owner of land can file a bill to cancel a paper title, or a bill for protection against a pretense of title to the disparagement of his ownership. 2. Same. Pleading. Complainant’s tille. An averment that the complainant is the real owner is sufficient under this statute, and his chain of title need not be set forth in the bill. 3. Same. Specific title of defendant. Sow set forth. If the object is to cancel a particular evidence of title possessed by the defendant, it should be as fully described as known to the pleader. 4. Same. General claim by defendant. Sow averred. In case of a complaint against a mere assertion of claim, failure to describe the defendant’s title is no ground of demurrer, but he must plead his right in answer. 5. Same. Practice. Costs. Decree. If the defendant disclaims title, it is a mere question of costs, but if he asserts a claim, its validity will be passed on, and, unless maintained, will be disposed of by decree against him.

Appeal from the Chancery Court of Washington County. Hon. W. G. Phelps, Chancellor. The appellant exhibited his bill against' the appellee, and alleged that he is the real owner of the land in controversy, commencing with a patent from the United States, and that his deeds will be shown at the hearing if requested; that he has been in uninterrupted adverse possession, by his tenants, for more than ten years, one tenant occupying the premises from 1877 to June 6, 1881, the date when the bill was filed; that the defendant is not the real owner, but asserts some claim to the land, and pretends to have a title, and that he probably has a conveyance from the board of liquidating levee commissioners; that the board acquired its title in May, 1869, and the privilege of redemption expired in May, 1871, and that no action to recover the land has been commenced at law and no bill to confirm the tax title has been filed in equity, within ten years after the defendant’s right accrued, and the complainant relies on the bar of limitation. Other averments were made, and they are stated in the opinion. The prayer was for relief adapted to the circumstances of the case. A demurrer, which was sustained, assigned the following causes: 1. There is no equity in the bill. 2. The complainant’s title must be set out and stated. 3. The ten years’ possession is not alleged to have been adverse; and if it were, it would not confer title. 4. This is an action of ejectment in disguise. .5. The complainant’s remedy is barred. I. The statute under which the bill was filed is very broad. Suit is allowed in behalf of the rightful owner whether in or out of possession, and is not limited to dissipating a cloud created by a deed or other written evidence of title, but extends to any asserted claim or pretense of right. Code 1871, § 975 ; Code 1880, § 1833. He is the real owner who has held possession for ten years under claim of title against all the world. Such an owner the complainant is admitted to be by the demurrer, for the- possession of those' in privity of title is available to him. It is unnecessary for him to set out the conveyances which make the links in his chain of title, but he avers that the chain reaches back to the United States. In this respect, the bill is sufficient. 2. The complainant who drew his own bill may not have known precisely the nature of the defendants claim. Hence the vagueness in its description. It is averred that the defendant claims the property and threatens suit. Allegations that he has attempted to disposses the complainant’s tenant and may have forcible possession are material only as showing his assertion of claim, and cannot defeat the bill, since the true owner may sue whether in or out of possession. Good reasons for equitable relief appearing, the court will not dismiss the bill on general demurrer, because they are vaguely or inartifieially set forth. 1. The complainant must show clearly the validity of his own title, and the invalidity of the defendant’s title. This bill asserts that the complainant’s title is good, but fails to disclose how. It does not set forth the chain of title, and it is impossible for the court to pass upon its validity. Huntington v. Allen, 44 Miss. 654; Phelps v. Harris, 51 Miss. 789; Griffin v. Harrison, 52 Miss. 824. If no demurrer had been filed and the bill were taken pro confesso no relief could be granted. Nothing can be made out of the averment of ten years’ possession, because it is not shown to have been adverse to the defendant or that the defendant was not under the disability of infancy, absence or the like. It is questionable whether such possession even if adverse would be title to sustain a bill to remove clouds. 2. The defendant’s title is not stated. Mere report is relied upon in this branch of the bill. If the defendant has a title from the levee board, it is too late to impeach it. Powers v. Penny, 59 Miss. 5. The bill states that the defendant may have evicted the complainant’s tenant .an'd that he perhaps is now in possession. His averment of adverse possession is destroyed by this admission, and the defendant’s title, if this be the one attacked, is shown to be unimpeachable. The bill is, however, in fact a mere bundle of rumors and reports, and was properly dismissed.